R v Maybir (No 4) - [2015] NSWSC 1739

Supreme Court

New South Wales

Medium Neutral Citation: R v Maybir (No 4) [2015] NSWSC 1739
Hearing dates: 22 October 2015
Decision date: 22 October 2015
Before: R A Hulme J
Decision:
Questions and answers 576-578 of police interview are admissible

Catchwords: CRIMINAL LAW – evidence – admissibility of certain questions and answers in accused’s police interview that reveal accused made deceased eat his own excrement – s 137 Evidence Act – whether probative value outweighed by danger of unfair prejudice – evidence of accused’s state of mind – where evidence has significant probative value – evidence admissible
Legislation Cited: Evidence Act 1995 (NSW) s 137
Cases Cited: Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303
R v Maybir (No 2) [2015] NSWSC 1737
Category: Procedural and other rulings
Parties: Regina
Kodi James Maybir
Representation:
Counsel:
Mr C Maxwell QC (Crown)
Mr G Brady SC (Accused)
Solicitors:
Solicitor for Public Prosecutions
Younes Espiner Criminal Lawyers

File Number(s): 2013/285215

Judgment

HIS HONOUR: The accused is on trial for the murder of a 7 year-old child on 20-21 May 2013. He also faces charges of assault, assault occasioning actual bodily harm, reckless wounding and production of child abuse material alleged to have been committed between 8 March and 19 May 2013, all involving the same child.
The Crown will be tendering a recorded interview by police of the accused that occurred on 20 November 2013. Mr Brady SC objects to the following portion (the deceased and his sister have been anonymised):

“Q576   [Sister] has told her grandmother that on the morning that [the deceased] went to sleep for the day, which I think we can fairly safely assume is the, the day that he’s had his accident - - -
A   So we assuming now.
Q576   - - - that you forced him to eat his own poo - - -
A   On that morning I made him eat his own poo.
Q576   - - - and you have also hit him on the head. That’s what [sister], a 5-year-old girl, has said.
A   So I made him eat his own poo on that morning and hit him on the head. That is a lie, but he has, I have made him eat it before, but not the, then.
Q577   You’ve made him eat his own poo before.
A   Yes, I have. That was in the very first time they were in the studio and he kept pooin’ and hiding his stuff.
Q578   O.K. What was the purpose of making him eat his own poo?
A   There was no purpose. I was just angry.”

Mr Brady conceded that the evidence was relevant but contended that it was inadmissible on the basis that its probative value was outweighed by the danger of unfair prejudice: s 137 of the Evidence Act 1995 (NSW).
After hearing submissions on 22 October 2015 I indicated that I would allow the evidence. The following are my reasons.

Background

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Maybir (No 4)

Details

AGLC: R v Maybir (No 4) [2015] NSWSC 1739
Case: [2015] NSWSC 1739
Decision Date: 22 October 2015

CaseChat Overview and Summary

The matter before the court involved the accused, Maybir, who was charged with the murder of a deceased. The central issue was the admissibility of certain questions and answers from Maybir’s police interview, where he admitted that he forced the deceased to eat his own excrement. The court was tasked with determining whether the probative value of this evidence outweighed the danger of unfair prejudice, as per section 137 of the Evidence Act. The issue also encompassed the relevance of the accused's state of mind and whether such evidence held significant probative value.

The court examined the nature of the evidence in question, which included explicit and highly prejudicial content. The defence argued that this evidence should be excluded under section 137 of the Evidence Act due to its potential to unfairly prejudice the jury against the accused. The prosecution, on the other hand, contended that the evidence was crucial in understanding the accused's state of mind and the circumstances leading to the deceased’s death. The court balanced the probative value of the evidence against its prejudicial impact, ultimately finding that the probative value was significant enough to outweigh the danger of unfair prejudice. The court held that the evidence provided crucial insights into the accused’s state of mind and the severity of the crime, thereby justifying its admissibility.

In conclusion, the court ruled that the evidence in question was admissible, as its probative value substantially outweighed the potential for unfair prejudice. This decision underscored the importance of evaluating both the probative value and prejudicial impact of highly sensitive evidence in criminal proceedings. The court’s ruling ensured that the jury had access to all relevant information necessary for a fair trial.

Orders